The February 2017 bar exam results brought a fresh round of disappointment to the Indiana legal community and a renewed conversation about why the scores keep dropping.
Overall, the pass rate plunged to 48 percent for the February 2017 exam, the lowest since at least 2002, the last year that bar exam statistics are available on the Indiana Board of Law Examiners’ website. A total of 263 individuals took the test in February with 62 percent of first-time takers passing and only 37 percent of the repeat takers being successful.
Former Indiana Supreme Court Justice Frank Sullivan speculated this may be the new normal. Applicants today need to be prepared to take the bar exam more than once.
As an example, he pointed to the Class of 2016 from Indiana University Robert H. McKinney School of Law, where he is now a professor. The overall pass rate for the July exam was 70 percent, but that rose to about 82 percent when the unsuccessful class members retook the exam this February.
Nationally, conventional wisdom holds that the increasing number of failing scores is correlated to the quality of students being admitted to law schools. As higher-qualified students decide not to pursue a J.D. because of the struggling job market in the legal profession, law schools are having to dip lower into the applicant pool to maintain their class sizes. Students with lower grade point averages and LSAT scores who would have been denied admittance 10 years ago are now being accepted.
However, Sullivan is not convinced. A professor at IU McKinney for the past five years, he has not noticed any decline in the quality of his students. He has seen no difference in the ability of the students or their level of preparation during his tenure in the classroom.
“I think the bar admissions either made the exam harder or are grading it harder,” he said.
Questions about the bar exam itself are not new.
Cynthia Gillard, attorney at Warrick & Boyn LLP in Elkhart, wondered if the Multistate Bar Exam could be tripping up many test takers. She was a member of the Indiana Bar Examination Assessment Task Force that evaluated the state’s bar exam and recommended the weight given to the MBE be reduced from 50 percent to 35 percent.
The Multistate Bar Exam follows a multiple-choice format and that, as Gillard pointed out, is not a style of test that law students commonly face. Test takers must choose the best answer, which may not technically be the right answer, and they cannot explain their reasoning as they are able to when answering the essay questions.
Gillard, who served on the Board of Law Examiners from 2000 to 2010, remembered staying for three days each spring and summer in an Indianapolis hotel to grade hundreds of essays. Writing an essay can illustrate someone’s thought process, and even if the answer is not correct, it can still show competency.
Managing partner Ted Waggoner of Peterson Waggoner & Perkins LLP in Rochester pointed to a potential disconnect between the law school curriculum and the bar exam. Clinics and hands-on training are now a regular part of a law student’s education, but Waggoner raised the question of whether the experiential activities are eating into the teaching of the theoretical concepts and doctrinal material that are still the focus of the bar exam.
Noting the consequences of flunking the bar exam and then having to figure out how to pay off student loan debt, he has taken to carefully counseling those who are thinking of enrolling in law school.
Waggoner, who was chair of the Indiana State Bar Association’s 2015 Legal Education Conclave, recommends that individuals take a break after completing their bachelor’s degree and work for a few years before deciding whether to study law. If they do enroll and then find themselves near the bottom of the class, given the economic reality, they might want to consider dropping out.
Graduating from law school does not guarantee employment. Gillard noted the purpose of the bar exam is to protect the public by ensuring the people licensed to practice are of good moral character, high ethical standards and have a reasonable understanding of the law.
Still, as Sullivan pointed out, the difference between passing and failing the bar can be one point. IU McKinney has stepped up efforts to assist students in getting ready and navigating the two-day test.
“The passing rate on the last three bar exams have been deeply disconcerting to me and very surprising,” he said. “We are all concerned and trying to make sure the graduates are as prepared as they can be.”•